It is difficult to keep track of the many lawsuits and proceedings by the EU Commission relating to Poland’s rule of law. The focus is on a key issue – judicial independence. That is also what the most recent judgment of the Court of Justice of the European Union is about. The Polish judicial reform of December 2019 violates EU law, the European Court of Justice (ECJ) announced in Luxembourg, thereby agreeing with the EU Commission.
The focus of the proceedings was again the Disciplinary Chamber of the Polish Supreme Court, through which Poland has been at odds with Brussels for years. It was seen as the centerpiece of the controversial reforms of Poland’s ruling Law and Justice (PiS) party and was created in 2018. Equipped with far-reaching powers to appoint and dismiss judges, their members were appointed by a body elected by Parliament. Critics saw it as an attempt to exert political influence on the judicial system.
Longstanding apple of discord: the Disciplinary Chamber
As early as July 2021, the ECJ had classified the chamber as unlawful. Now the highest EU court is dealing with another law on this chamber from 2019. In the meantime, the Polish government made changes, but with them they did not meet all the conditions of the EU Commission.
The EU Commission was particularly bothered by the wide-ranging powers of the Disciplinary Chamber to decide directly on the status and the exercise of office by the judges. These were, for example, interventions in the opening of criminal proceedings, retirement and other social and labor law issues. The ECJ affirms that this chamber does not meet the necessary requirements for independence and impartiality and is inadmissible.
In addition, Poland has violated the “guarantees of access to an independent, impartial court previously established by law”. Because the Polish regulations could prevent Polish judges from invoking applicable EU law and, in case of doubt, from turning to the European Court of Justice – without having to fear sanctions.
The judges must also be allowed to check whether another court or another judge meets the requirements of EU law for effective legal protection – i.e. whether their judicial independence or competence is guaranteed. A corresponding ban was also discussed under the title “Muzzle Law”. The European Court of Justice also ruled that the obligation to publish memberships in associations, foundations or political parties on the Internet is inadmissible and exposes judges to the risk of “inadmissible stigmatization”.
Million fines for Poland
As part of the proceedings, the European Court of Justice instructed Poland to suspend the work of the Disciplinary Chamber on the disputed points. Since Poland had not complied with this instruction, the country was fined one million euros per day in October 2021. Following the changes made in April this year, this fine was reduced to EUR 500,000 per day. According to calculations by John Morijn, a law professor at the University of Groningen in the Netherlands, the payments so far total 563 million euros.
An EU Commission spokesman also confirmed in a press briefing that the fine totaled more than 500 million euros. If Poland does not meet the payment requirements of the EU Commission, the latter collects the money through a so-called off-setting procedure. With this, she deducts the outstanding amount of money that Poland would otherwise be entitled to. This procedure is already under way. Due to the final decision that has now been announced, no further fines will be incurred.
The EU Commission is holding back billions of euros for Poland from the Corona reconstruction fund – because of existing concerns about the independence of the judges.
Praise in Brussels, anger in Warsaw
“Today is an important day for restoring an independent judiciary in Poland,” tweeted EU Justice Commissioner Didier Reynders on Monday. In Poland, meanwhile, Polish Justice Minister Zbigniew Ziobro called the ECJ “corrupt,” AFP reported. In addition, the verdict was not written by judges but by politicians and violates the EU treaties, Ziobro explained.
Poland is now obliged to implement the judgement. If Poland does not comply with this from the point of view of the EU Commission, the EU Commission can again apply to the Court of Justice for fines to be paid against Poland. From the point of view of the legal expert Morijn, the ECJ has decided once and for all: “Judges can be held accountable for their behavior in disciplinary proceedings, but only by people who are themselves impartial and independent – i.e. judges.”
Concerns about the Polish rule of law remain
With today’s verdict, the last word in the dispute between Brussels and Warsaw has probably not yet been spoken. In February, the EU Commission decided to sue Poland for its Constitutional Court. In 2021, he had denied the supremacy of EU law over national Polish law. In the middle of last week, the EU Commission was also “very concerned” about a new Polish law that is to set up a special committee to examine Russian influence. The opposition suspects that this law is intended to oust former Prime Minister Donald Tusk from the political arena before the upcoming elections in the autumn.